On 16-Sep-2006 the owners of Leela Garden moved the Dy. Registrar to form a Society u/s 8 of MCS Act. On 18-Sep the Promoter sent a letter agreeing to the same. On 6th Nov 2006, mid way through the process, promoter/builder filed a Deed of Declaration under MAOA, and then didn't participate in further proceedings with Dy. Registrar. The Dy. Registrar notified the Society on 14-Dec-2006. Jt Registrar, and later the Minister of Co-Op, overturned Dy. Registrar citing Deed of Declaration. Bombay HC stayed the orders of Jt. Registrar and Minister in interim orders in 2013. Till date, no owner has moved to execute Deed of Apartments. However, citing the Deed of Declaration, builder sought to alienate a portion of land and build more flats (as and when FSI or TDR became available). Recently tried to intrude and build stating the Bombay HC order was for "functioning" of society, and didn't bar construction. A T.I. against construction is pending in civil court, and various other civil/criminal litigations have been stayed by Bombay HC pending outcome of Civil W.P. 9219/13 Owners have now sought to cancel deed of declaration by the amendment passed by Maharashtra Govt in 2020 to MAOA. Only date from Registrar is pending to file cancellation deed. Questions: 1. Upon cancellation of deed, who becomes owner u/s 14(2) of MAOA? Owners or builder? 2. Can stay on civil/criminal cases be vacated citing SC order of automatic vacation of stays through order in Asian Resurfacing of Road Agency Private Limited and another V/s Central Bureau of Investigation (Misc. application No. 1577 of 2020 in Criminal Appeal Nos. [deleted] of 2013)? What is process to move cases forward?
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Till conveyance is executed in favour of society builder would be owner of land on which building has been constructed
2) file precipe in trial court that cases be placed on board for directions .since stay has not been extended stay would stand vacated in view of SC order
1.Owners
2. Yes but it's not automatic vacation it's for stay not to be continued above six months automatically. Reasons need to be ascertained by court
1 Section 14, in a clear and simple manner, states that a property may be removed from the provisions of the act if the majority of apartment owners execute an instrument to that effect. Once the property is removed or no longer a part of the provisions of the act, the ownership of the property shall devolve in common by every apartment owner.
2. Vacating the stay is not automatic, you may file a petitioin to vacate the stay citing the same ruling.
1. To vacate stay, is the cancellation of deed of declaration under MAOA amendment a good reason to restart stayed civil/criminal cases? 100% of claims by builder originate from the Deed of Declaration (no Deeds of apartment were executed). 2. Builder didn't appear in RERA proceeding today in spite of a copy of the RERA complaint and notice of hearing being part of an Affidavit filed in a separate civil case. Can builder feign ignorance of notice of RERA hearing despite notice being filed in a case he is part of? 3. In R.C.S 1981/18, builder has denied we are a recognized Society protected by MOFA and quoted the Deed of Declaration for his right to build. With cancellation deed being executed, can he now deny RERA by claiming Society falls under MOFA? 4. Any case law for Sec 14(2) of MAOA that flat owners become owners of layout upon cancellation of deed of declaration? If flat owners become owners of project layout, can we proceed for conveyance? Or do we need permission of Bombay HC under WP 9219/13?
1) once he is served with notice he cannot claim he was not aware of hearing before RERA
2) it is necessary to peruse reliefs claimed by society before RERA to advice
3) you are not owners of project layout
4) ypu should proceed with deemed conveyance if builder refuses to execute conveyance in favour of society
1. Yes
2. No you can proceed exparte
3. No
4. You need to go for WP as builder may object conveyance
1. Vacating the stay is a different subject to that of the cancellation of a registered deed, don't get confused by mingling both.
2. The court will take its due course of action if the builder continues to ignore the court summons.
3. It is a matter of trial and the builder's stand and defence cannot be predicted, in case he takes that stand you can challenge the same on merits in your side.
4. You have already approached court seeking similar relief, hence concentrate on the case before you instead of getting deviated by misguiding information.
Dear client,
Section 5 – Ownership Of Apartments- This section states that the sole owner or owners of the apartment shall be entitled to exclusive ownership and possession of their respective apartment along with a Declaration which shall be executed and registered in accordance with Section 2 of the Act. The sole owner or owners of the apartment shall be entitled to execute Deed of Apartment in the manner prescribed.
Thank you.
